State Right to Bear Arms in Kentucky

Last updated November 1, 2017.

The Bill of Rights of the Constitution of Kentucky provides that “[a]ll men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:…The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.”1

In Posey v. Commonwealth, the Supreme Court of Kentucky rejected a state right to bear arms challenge to Ky. Rev. Stat. Ann. § 527.040, which criminalizes possession of a firearm by a convicted felon.2 The court reasoned that “the right [to bear arms] is conditioned on certain self-evident premises – that it be enjoyed lawfully and without undue interference with the rights of others.”3 Citing several other Kentucky statutes, the court rejected the defendant’s contention that the “right to bear arms” is absolute and thus firearms possession is completely exempt from legislative regulation. The court concluded that section 527.040 is constitutional because it “is not arbitrary or irrational and does not unduly infringe upon the right to bear arms” endorsed in the state constitution.4

Similarly, in Eary v. Commonwealth, the Supreme Court of Kentucky rejected defendant’s state right to bear arms challenge to former Ky. Rev. Stat. Ann. § 527.040, which at that time criminalized only possession of a handgun by a convicted felon.5 The court held that a statute regulating the possession of firearms by dangerous criminals is “reasonable legislation in the interest of public welfare and safety and that such regulation is constitutionally permissible as a reasonable and legitimate exercise of the police power.”6

In line with these cases, the Kentucky Attorney General has also opined that the right to bear arms is not absolute.7 The Attorney General has also noted, however, that “a person has a right to bear arms in his own defense as long as he does not conceal them.”8

However, in Brewer v. Commonwealth, the Supreme Court of Kentucky upheld a defendant’s challenge to the Commonwealth’s efforts to seek forfeiture of firearms seized from the defendant’s residence allegedly in connection with drug trafficking crimes under Ky. Rev. Stat. Ann. § 218A.410.9 The court rejected the Commonwealth’s argument that the firearms were subject to automatic forfeiture under the statute, deeming that this argument “cannot be correct, especially in light of the fact that citizens have a constitutional right to bear arms and a right to due process of law.”10

Notes

See 96 Ky. Op. Att’y Gen. 40, 1996 Ky. AG LEXIS 80 (stating that a University of Louisville policy prohibiting possession or storage of deadly weapons or destructive devices on any University campus or in any University facility does not violate section 1, Seventh); see also 94 Ky. Op. Att’y Gen. 14, 1994 Ky. AG LEXIS 27 (stating that a bill to prohibit the possession of a handgun by a minor would not violate section 1, Seventh). ⤴︎